Austin's Analytical Positivism

AUSTIN’S ANALYTICAL POSITIVISM

Like Bentham, Austin believed that “Law” is only an aggregate of individual laws. In his view, all laws are
rules the majority of which regulate behaviour. These are either directives or those imposed by general
opinion. A directive, whether general or particular, is the expression or intimation of your wish “that
another shall do or forbear, issued in the form of a command”. Accordingly, a law in its most
comprehensive signification is “a rule laid down for the guidance of an intelligent being by an intelligent
being having power over him”.7

Austin distinguished between what he called “laws properly so called” and “laws improperly so called”.
The key to a law “properly so called” lies in obligation. An obligation exists when another has the power
and purpose of inflicting an evil on any actor, who fails to conform to the desired conduct. This other
may be God, or human beings acting as political superiors, ie, a sovereign person or body of persons in
an independent political society, or private persons acting in pursuance of rights conferred upon them
by political superiors.

Every directive is a command, the threat of evil is a sanction and the party commanded and threatened
is under an obligation or duty. Duty and sanction are correlative and fear of sanction is the motive for
obedience.

A command may be “particular” or “general”. Particular command is addressed to one person or group
of persons whereas general commands are addressed to the community at large and enjoin classes of
acts and forbearances. General commands are continuing commands. Any commander who receives
“habitual obedience” is sovereign in that society.

Laws “properly called” are subdivided by him into laws set by God, Divine Laws, and Laws set by men to
men, acting as their political superior. To every law set by men to men he applied the term “positive
law” or “law simply and strictly so called” so as to distinguish them from the laws of God. “Positive laws”
are the subject matter of jurisprudence. Separate from all these are laws set by men to men neither as
political superiors, nor in pursuance of rights conferred upon them by such superiors, eg, those set by a
master to a servant or the rules of a club. They are still laws “properly so called” because they are
commands, but he distinguished them from positive law by giving them the term “positive morality”.

Major thrust in Austinian positive law was on separation of law from morals. As a corollary of it, he
distinguished the science of jurisprudence from ethics. Amos observed that a positive law, “as Austin has
shown, must be legally binding though it may be unjust”. For him, command was the “key to the science
of jurisprudence”.

Salmond has criticised Austin’s theory of law which completely divests law from morality and held that
law to be effective must have in it elements of ethics and justice.

Lon Fuller in the United States said that the purpose of law is to subject human conduct to the
governance of rules. The law, therefore, cannot be devoid of morality which includes values, ideals,
natural law and notions of justice.
The German legal philosopher Gustav Radbruch has asserted that a purposive law can never be
separated from justice and morality which are pre-conditions of a good law.

Dworkin has rejected the positive conceptions of law and interpretation. According to him, rights are
premised upon a comprehensive set of moral precepts that make the individual rights valuable, and act
as “trumps”.

The school founded by Austin is variously called “analytical”, “positivism”, “analytical positivism” etc.
Some of the jurists have objected to all the three terms. According to them, the word “positivism” was
started by Auguste Comte to indicate a particular method of study. Therefore, the word “positivism”
alone will not convey a complete idea of Austin’s school. The term “analysis” cannot give separate
identity to the school because it is applied to other schools also. Similarly, the term
“analytical positivism” also creates confusion. Therefore, Professor Allen thinks it proper to call Austin’s
School as the “Imperative School”.

Austin was known to be father of English Jurisprudence. He focused his studies upto the positive law
only and applied analytical method for the purpose. Austin described law as an aggregate rules set by
politically superior man over the man politically inferior.

He formed four essentials attributes of law namely:

command

sanction

duty and

sovereignty.

He for the first time treated jurisprudence to be a science of law concerned along with the analysis of
legal concept - their exposition , examination and comparison in a scientific manner for determining the
scope and extent in a given politically society. He distinguished positive law form positive morality which
is devoid of any legal sanction. He identified law with command , duty and sanction.

AUSTIN’S CONCEPTION OF LAW

Austin defined law as “a rule laid down for the guidance of an intelligent being by an intelligent being
having power over him”. He has divided law into two parts—

(1)Laws set by God for men, and

(2)Human Laws, ie, laws made by men for men.

Human laws are further classified into positive laws and other laws.

(a) Positive laws. These are the laws set by political superiors as such, or by men not acting as political
superiors but acting in pursuance of legal rights conferred by political superiors. Only these laws are the
proper subject matter of jurisprudence.
(b) Other laws. These are the laws which are not set by political superiors or by men in pursuance
of legal rights.

According to Austin, the study and analysis of positive law alone is the subject matter of jurisprudence
and the chief characteristics of positive law are command, duty, and sanction. However, he accepts that
there are three kinds of laws which, though not commands, may be included within the purview of
jurisprudence by way of exception. They are as follows—

1.Declaratory laws. These are not commands because they are already in existence and are passed only
to explain the law which is already in force.

2.Laws of repeal. These are not commands but in fact they are the revocation of a command.

3.Laws of imperfect obligation. These are not treated as commands because there is no sanction behind
them.

Criticism of Austin's Imperative Theory of Law

Austin's theory of positive law had been criticised on major aspects and termed as full of errors which
hardly has any significance in juristic thought process by Bryce.

Some of the grounds for criticism are as follows:

(a) Customs ignored. Austin’s law as the command of the sovereign is not warranted by historical facts.
In early times, instead of commands of any sovereign, customs used to regulate the conduct of people.
Even after coming into existence of the State, customs continued to regulate the conduct of people.
Austin has totally ignored the importance of customs.

(b) Judge-made laws. In Austin’s theory, judge-made laws find no place. In applying precedents and in
interpreting the law, judges make laws which should also have been considered.

(c) Law conferring privileges. The law which is purely of a permissive character and confers only
privileges is not covered by Austin’s definition of law. An example can be taken of the Wills Act which
lays down the method of drawing a testamentary document has not been included in Austin’s definition.

(d) Conventions. According to Austin’s definition, conventions which operate imperatively, though not
enforceable by the court, shall not be called law, although they are law and are a subject matter of study
in jurisprudence.

(f) Rules set by private persons. According to Austin “positive law” does not include within itself rules
set by private persons in pursuance of legal rights which is undue extension because their nature is very
vague and indefinite.

AUSTIN’S CONTRIBUTION
Although Austin’s theory has been criticised severely by many jurists but his contribution to
the Analytical school can never be overlooked. He opened an era of new approach to law. Even
the defects of his theory have been a source of further enlightenment on the subject as Hart says
—

But the demonstration of precisely where and why he is wrong has proved to be constant source
of illumination; for his errors are often the mis-statement of truth of central importance for the
understanding of law and society.

Salmond and Gray have further improved upon his theory. They differ only from Austin in his
emphasis upon sovereign as lawgiver. According to Salmond, the law consists of the rules
recognised and acted upon by the courts of justice while Gray defines law what has been laid
down as a rule of conduct by the persons acting as judicial organs of the State.

Sir Henry Maine has remarked that:

his (Austin’s) works are indispensable, if for no other object, for the purpose of clearing the
head.